Ladies and gentlemen, Bagginses and Boffins. Tooks and Brandybucks. Grubbs! Chubbs! Hornblowers! Bolgers! Bracegirdles! Proudfoots. Put your butter away for I am about to respond, rebut, rebuke and more to a recent blog post for Judicial Power Project, by Anthony Speaight QC on data retention.

Next, Speaight recaps the data retention saga so far, in that telecommunications companies have always recorded who uses their services, when and where, often for billing purposes. A long time ago, in a galaxy far, far away (a few years ago, and anywhere with an internet connection) this position was a robust one. But the European Commission (Commission) in 2011 highlighted that:

So, it’s simply untrue to refer to just billing data when talking about data retention, because this isn’t the only data that is or has ever been sought.

It’s the Islamists fault why we have data retention:

Speaight next points out that it was the advent of Islamist international terrorism that made it advantageous to place data retention obligations on companies. Oh really? Are we going down this route? Well….. demands for data retention can be traced back to the ‘International Law Enforcement and Telecommunications Seminars’ (ILETS) (6) and in its 1999 report, it was realised that Directive 97/66/EC (the old ePrivacy Directive) which made retention of communications data possible only for billing purposes was a problem. The report sought to ‘consider options for improving the retention of data by Communication Service Providers.’ Improve? Ha. Notice how 1999 was before 9/11? Funny that.

It doesn’t stop there though. A year later (still before 9/11), the UK’s National Crime and Intelligence Service (NCIS) made a submission (on behalf of the Mi5/6, GCHQ etc) to the Home Office on data retention laws. They ironically argued that a targeted approach would be a greater infringement on personal privacy (para 3.1.5). Of course, they didn’t say how or why this was the case, because, reasons. Charles Clarke, the then junior Home Office Minister, and Patricia Hewitt, an ‘E-Minister’ both made the claim such proposals would never happen (Judith Rauhofer, ‘Just Because You’re Paranoid, Doesn’t Mean They’re Not After You: Legislative Developments in Relation to the Retention of Communications Data’ (2006) SCRIPTed 3, 228; Patricia Hewitt and Charles Clarke, Joint letter to Independent on Sunday, 28 Jan 2000) and should not be implemented (Trade and Industry Committee, UK Online Reviewed:the First Annual Report of the E-Minister and E-Envoy Report (HC 66 1999-2000), Q93).

Guess what? A year later Part 11 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001) came into force three months after 9/11 (Judith Rauhofer, 331). The Earl of Northesk, however, pointed out that ‘there is no evidence whatever that a lack of data retained has proved an impediment to the investigation of the atrocities’ on 9/11 (HL Deb 4 Dec vol 629 col. 808-9). What this demonstrates is that data retention was always on the cards, even when its utility wasn’t proven, where the then Prime Minister Tony Blair, noted that ‘all the surveillance in the world’ could not have prevented the 7/7 bombings. It’s just that as Roger Clarke succinctly puts it:

“[M]ost critical driver of change, however, has been the dominance of national security extremism since the 2001 terrorist attacks in the USA, and the preparedness of parliaments in many countries to grant law enforcement agencies any request that they can somehow link to the idea of counter-terrorism.” (Roger Clarke, ‘Data retention as mass surveillance: the need for an evaluative framework’ (2015) International Data Privacy Law 5:2 121, 122).

What about its true purpose? You know, spying on every EU citizen? Well the European Data Protection Supervisor (EDPS) responded to the Commission’s evaluation of the DRD. WARNING: EDPS pulls no punches. First, the EDPS reiterated that the DRD was based upon the assumption of necessity (para 38). Secondly, the EDPS criticised the Commission’s assertion that most Member States considered data retention a necessary tool when conclusions were based on just over a third (that’s less than half, right?) of them (para 40). Thirdly, these conclusions were in fact, only statements (para 41). Fourthly, the EDPS highlighted there should be sufficient quantitative and qualitative information to assess whether the DRD is actually working and whether less privacy intrusive measures could achieve the same result, information should show the relationship between use and result (43).

Surprise, surprise, the EDPS didn’t find sufficient evidence to demonstrate the necessity of the DRD and that further investigations into alternatives should commence (para 44). Fifthly, the EDPS pretty much savaged the quantitative and qualitative information available (para 45-52). A few years later, the CJEU asked for proof of the necessity of the DRD. There was a lack of statistical evidence from EU Member States, the Commission, the Council and European Parliament, and despite that, they had the cheek to ask the CJEU to reject the complaints made by Digital Rights Ireland and others anyway (ibid). Only the Austrian government were able to provide statistical evidence on the use (not retention) of communications data which didn’t involve any cases of terrorism (ibid). The UK’s representatives admitted (come again? The UK admits something?) there was no ‘scientific data’ to underpin the need of data retention (ibid), so the question begs, wtaf had the DRD been based upon? Was it the assumption of necessity the EDPS referred to? Draw your own conclusions. The moral of the story is that the DRD did not operate smoothly.

I felt a great disturbance in the Law, as if thousands of spies, police, other public authorities, politicians and lawyers suddenly cried out in terror, as the State were suddenly unable to spy anymore. I fear something terrible has happened.

So, who was surprised? Was it the European Parliament who had initially opposed this form of data retention as they urged its use must be entirely exceptional, based on specific comprehensible law, authorised by judicial or other competent authorities for individual cases and be consistent with the European Convention on Human Rights (ECHR)? Was it a surprise to them when they also noted that that ‘a general data retention principle must be forbidden’ and that ‘any general obligation concerning data retention’ is contrary to the proportionality principle’ (Abu Bakar Munir and Siti Hajar Mohd Yasin, ‘Retention of communications data: A bumpy road ahead’ (2004) The John Marshall Journal of Computer & Information Law 22:4 731, 734; Clive Walker and Yaman Akdeniz, ‘Anti-Terrorism Laws and Data Retention: War is over?’ (2003) Northern Ireland Legal Quarterly 54:2 159, 167)?

Was it a surprise to the WP29, the European Data Protection Commissioners, the International Chamber of Commerce (ICC), European Internet Services Providers Association (EuroISPA), the US Internet Service Provider Association (USISPA), the All Party Internet Group (APIG) (Abu Bakar Munir and Siti Hajar Mohd Yasin, 746-749) and those at the G8 Tokyo Conference? Hell, even our own assistant Information Commissioner, Jonathan Bamford, back in 2001 wouldn’t be surprised because he said ‘Part 11 isn’t necessary, and if it is necessary it should be made clear why’ (HL Deb 27 Nov 2001 vol 629 cc183-290, 252). Was it a surprise when prior to Digital Rights Ireland:

The point I’m trying to hammer home is that (you’ve guessed it), the CJEU’s ruling in Digital Rights Ireland should come as no surprise. Still on the issue of surprise, for Speaight it was because it departed from decisions of the European Court of Human Rights (ECtHR) and the CJEU itself. Ok, let’s look at these ECtHR cases Speaight refers to. The first is Weber and Saravia v Germany, a case on ‘strategic monitoring.’ This is a whole different kettle of fish when compared to the DRD as this concerned the surveillance of 10% (I’m not saying this is cool either btw) [30, 110] of German telecommunications, not the surveillance of ‘practically the entire European population’ [56]. Ok, that may have been an exaggeration by the CJEU as there are only 28 (we’re not so sure about one though) EU Member States, but the point is, the powers in question are not comparable. The DRD was confined to serious crime, without even defining it [61]. Whereas German law in Weber concerned six defined purposes for strategic monitoring, [27] and could only be triggered through catch words [32]. In Digital Rights Ireland, authorisation for access to communications data in the DRD was not dependent upon ‘prior review carried out by a court or by an independent administrative body’ [62] where in Weber this was the case [21, 25]. Apples and oranges.

The second ECtHR case was Kennedy v UK, and it’s funny that this case is brought up. The ECtHR in this case referred to a previous case, Liberty v UK in which the virtually unfettered power of capturing external communications [64] violated Article 8 of the ECHR [70]. The ECtHR in Kennedy referred to this as an indiscriminate power [160, 162] (bit like data retention huh?), and the UK only succeeded in Kennedy because the ECtHR were acting upon the assumption that interception warrants only related to one person [160, 162]. Of course, the ECtHR didn’t know that ‘person’ for the purposes of RIPA 2000 meant ‘any organisation and any association or combination of persons,’ so you know, not one person literally.

And this was, of course, prior to Edward Snowden’s bombshell of surveillance revelations, which triggered further proceedings by Big Brother Watch. A couple of years ago, in Roman Zakharov v Russia, the ECtHR’s Grand Chamber (GC) ruled that surveillance measures that are ‘ordered haphazardly, irregularly or without due and proper consideration’ [267] violates Article 8 [305]. That is because the automatic storage of clearly irrelevant data would contravene Article 8 [255]. This coincides with Advocate General (AG) Saugmandsgaard Øe’s opinion that the ‘disadvantages of general data retention obligations arise from the fact that the vast majority of the data retained will relate to persons who will never be connected in any way with serious crime’ [252]. That’s a lot of irrelevant data if you ask me. Judge Pinto de Albuquerque, in his concurring opinion in Szabo and Vissy v Hungary regards Zakharov as a rebuke of the ‘widespread, non-(reasonable) suspicion-based, “strategic surveillance” for the purposes of national security’ [35]. So, I’d say that even Weber v Saravia is put into doubt. And so, even if the CJEU rules that data retention in the national security context is outside its competence, there is enough ECtHR case law to bite the UK on its arse.

The CJEU case law that Speaight refers to is Ireland v Parliament and Council which was a challenge to the DRD’s legal basis, not whether it was compatible with the Charter of Fundamental Rights, so I’m not entirely sure what Speaight is trying to get at. All in all, Speaight hasn’t shown anything to demonstrate that Digital Rights Ireland has departed from ECtHR or CJEU case law.

You forgot to say the UK extended data retention laws:

Speaight then rightly acknowledges how the UK government replaced UK law implementing the DRD with the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014) in lightspeed fashion. What Speaight omits, however, is that DRIPA 2014 extended retention obligations from telephone companies and Internet Service Providers (ISPs) to Over-The-Top (OTT) services such as Skype, Twitter, Google, Facebook etc. James Brokenshire MP attested that DRIPA 2014 was introduced to clarify what was always covered by the definition of telecommunications services (HC Deb 14 July, vol 584, 786). This, of course, was total bullshit (5), but like I said, politicians goin’ politicate.

Claimants don’t ask questions, courts do:

Speaight moves onto the challenges to DRIPA 2014, we know the story already, the High Court (HC) said it was inconsistent with Digital Rights Ireland, whereas the CoA disagreed, blah, blah. Speaight points out that the claimants had no issue with data retention in principle, which is true, but so what? Speaight also points out that the CJEU went further than what the claimants asked by ruling that blanket indiscriminate data retention was not permissible under EU law. Wait, what the fark? It’s not the bloody claimants’ that ask the CJEU a question on the interpretation of EU law as I’m pretty sure it was the Swedish referring court (via Article 267 of the Treaty on the Functioning of the EU, you know, a preliminary reference) that asked the CJEU:

Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime (as described [below under points 1-6]) compatible with Article 15(1) of Directive 2002/58/EC, 1 taking account of Articles 7, 8 and 15(1) of the Charter?

And the CJEU said no. End of discussion.

The ends don’t always justify the means and for clarity, the CJEU didn’t reject shit:

Speaight also says that the CJEU in Tele2 and Watson rejected AG Saugmandsgaard Øe’s advice that the French governments found access to communications data useful in its investigations into terrorist attacks in 2015. Such a position however, falls victim to several questions, such as under what circumstances was the data sought? Was it accessed as a consequence of the legal obligation to retain? Or was it already retained for business purposes? What were the results of the use of that data? Could the same results have been achieved using less intrusive means? Saying it is useful tells us nothing as the ECtHR has plainly said necessity (in a democratic society) is not as flexible as expressions such as ‘useful’ [48], and as the CJEU rightly noted, a measure in and of itself, even in the general interest cannot justify general indiscriminate data retention [103]. This demonstrates that the CJEU didn’t reject anything, they didn’t even refer to the French government’s evidence, they just said as fundamental as fighting serious crime may be, and the measures employed, cannot by themselves justify such a fundamental departure from the protection of human rights. Just because you can, doesn’t mean you should. A certain ECtHR said something similar in Klass v Germany in that States ‘may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate’ [49].

The CJEU doesn’t have to answer what it wasn’t asked:

Speaight then whines about the CJEU not addressing the issue of national security, well they weren’t asked about national security in Tele2 and Watson, were they? Like I said, even if the CJEU doesn’t have competence to rule on national security based data retention, Roman Zakharov is watching you from Strasbourg (he’s not actually in Strasbourg, I don’t think, but you dig).

What’s your problem with notification?

Speaight also bemoans the obligation to notify saying this requirement could damage investigations and surveillance and went beyond what the claimants had asked. Well, again, the claimants weren’t asking the questions, ffs, and the CJEU made this point by referring to previous case law, notably, Schrems [95]. The CJEU made very clear that notification should be done ‘as soon as that notification is no longer liable to jeopardise the investigations being undertaken by those authorities’ [121]. This is consistent with the ECtHR’s stance. Both courts are aware that notification can defeat the purpose of the investigation, and sometimes even after it has concluded, notification may still not be appropriate. But Speaight seems to omit this crucial detail.

Lawyers getting mad:

Speaight notes that criticism of Tele2 is not confined to Eurosceptics. Sure, but you don’t have to be a Europhile to defend it either. He also noted that it was roundly condemned by all the participants at a meeting of the Society of Conservative Lawyers. Well, no shit to my Sherlock, the name kinda gave it away. He also notes that the former Independent Reviewer of Terror law, David Anderson QC, said it was the worst judgment he knew of. Wait til Anderson reads the ECtHR’s case law on this matter then, which if anything, on proper reading goes further than Tele2. Speaight also points out that Demonic Grieve QC MP was pissed and that a well distinguished member of the French Bar, Francois-Henri Briard basically saying we need more conservative judges to trample on fundamental rights. If a judgment that protects the fundamental rights of all EU citizens pisses off a few lawyers, so be it.

Conclusions:

I’ve spent way too much time on Speaight’s post, and the really sad thing is, I’ve enjoyed it. It’s hard to have a conversation about data retention when you first have to sift through a load of bollocks, and there was plenty of bollocks, just to make your point. And by the time you’ve cleared through all the falsities and misleading or exaggerated points, you run close to 4k words without actually saying what your position is. So, my position for this blog post is, we should always shoot down rubbish when it shows its ugly face or else it festers. Actually, the point is, I can believe that blanket indiscriminate data retention is unlawful.

On 21 September 2017, the Guardian published an article warning that from January 2018, UK banks and building societies are to carry out immigration checks on 70 million current accounts. 70 million?

The article continues that this measure is expected to identify 6000 visa overstayers, failed asylum seekers and foreign national offenders facing deportation. Accounts that are identified will be closed down or frozen, to make it difficult to maintain a settled life in the UK. This is said to act as a powerful incentive for an agreement on voluntary departure so money can be secured once they’ve left the country. Hang on, if accounts can be closed or frozen, how are home returners supposed to pay for leaving the UK if they can only access their money after they have left?

“The government’s own record shows it cannot be trusted even to implement this system properly. Immigration status is very complex, and the Home Office consistently gives out incorrect information and guidance…Migrants and ethnic minorities with every right to be here will be affected by the imposition of these new checks.”

This began with the then Home Secretary (now Prime Minister) Theresa May in an interview with the Telegraph where said:

“The aim is to create here in Britain a really hostile environment for illegal migration… What we don’t want is a situation where people think that they can come here and overstay because they’re able to access everything they need.”

“[P]ackage of measures designed to make life so difficult for individuals without permission to remain that they will not seek to enter the UK to begin with or if already present will leave voluntarily.”

This includes ‘measures to limit access to work, housing, health care, bank accounts and to reduce and restrict rights of appeal against Home Office decisions’ (ibid). The defining feature is the reliance on indirect means to encourage compliance with and punish breaches of immigration control (ibid) effectively turning the UK into a nation of border cops.

So, what is the legal basis for latest in the Hostile Environment Saga?

As Yeo highlights, the legal basis for this new measure appears to come from Schedule 7 of the Immigration Act 2014 (IA 2014) which inserts s.40A into the IA 2014. Section 40(A)(1) requires banks and building societies to carry out immigration checks (specified by regulations) into each current account which is not an excluded account. Excluded accounts consists of accounts used for purposes of trade, business or profession, which can be found in Regulation 2 of the IA 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2017. Section 40B concerns the bank or building societies duty to notify the existence of current accounts for disqualified persons. A disqualified person is spelt out in s.40(A)(3) of the IA 2014, is a person who is in the UK, does not have leave to remain and for the Secretary of State to consider the account to be frozen (see s.40D and E of the IA 2014 respectively).

The Regulation responsible for the immigration checks made under s.40(A)(1) of the IA 2014 can be found in the Immigration Act 2014 (Current Accounts) (Compliance &c) Regulations 2016. Regulation 2 notes that immigration checks must be carried out during each successive quarter of each year. Four times a year, every year! So, these ridiculous powers appear to have a sound legal basis, I guess that is the end of that chapter, right? Yeah, I didn’t think so.

Give me a E, give me a C, give me a H, give me a R:

That pesky human rights document that the UK helped draft all them years ago just won’t stop being a pain in its ass. Yes, I am referring to the European Convention on Human Rights (ECHR). Why is this relevant? Because as Yeo correctly notes the hostile environment measures have great potential of intruding into people’s private lives. And what does Article 8 of the ECHR protect? Private life. For those who are unfamiliar with probably the most elusive (Luke Clements, Nuala Mole, and Alan Simmons, EUROPEAN HUMAN RIGHTS: TAKING A CASE UNDER THE CONVENTION p. 176 (2d ed. 1999)) Convention Right, it states that:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In a nutshell, this Article says that the State should leave us the hell alone in the enjoyment of these rights (negative obligations). This is not absolute, and there are certain circumstances in which the State can intervene (as detailed in Article 8(2)), there may even be instances where the State has failed to intervene and thus failed to protect Article 8 rights based on positive obligations (X and Y v Netherlands, (para 23)).

For this blog, only the aspect of private life will be considered. For Article 8 to be applicable, it first has to be engaged/triggered/interfered with, and because private life is not susceptible to exhaustive definition (Bărbulescu v Romania, (para 70)), this is easy-peasy to establish. Immigration checks requires the processing of personal data which is detailed in many data protection instruments, and as such involves an interference with private life (Amann v Switzerland, (paras 65-7)). The mere fact that personal data is even stored interferes with Article 8 whatever the subsequent use of said data (S and Marper, (para 67)). This is due to the protection of personal data being of fundamental importance to the enjoyment of private life (ibid, (para 103)). There are various other ways in which Article 8 could be engaged, whether it is based on removal (which would also interfere with ‘family life’ (Al-Nashif v Bulgaria, (para 102-103)) and ‘home’ (Slivenko and others v Latvia, (para 96)), or disrupting professional activities (Niemietz v Germany, (para 29) etc. Once interference has been established, this must be ‘in accordance with the law’ and ‘necessary in a democratic society.’

In Accordance with the Law:

Here comes some legal Kung Fu. The first legal test of whether a measure complies with human rights is to determine whether the law is ‘in accordance with the law.’ Essentially whether the law itself is lawful. The European Court of Human Rights (ECtHR) have ruled extensively on the matter and has set out some clear requirements. The law has to have some basis in domestic law (M.M. v UK, (para 193)), and has to have quality e.g. be accessible and foreseeable (S and Marper, (para 95).

This first requirement of having some basis in domestic law is satisfied due to the power to compel banks and building societies comes from an Act of Parliament which enables Regulations to be created to that effect. The law will probably also satisfy accessibility because its published online (Leander v Sweden, paras 52-3). Now, foreseeability is a little trickier, a law is foreseeable if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate their conduct (Amann v Switzerland, (para 56). This ensures there are adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any such measures (Uzun v Germany, (para 61). After all:

[I]t would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference…(Szabo and Vissy v Hungary, (paras 230-1).

Forgive the dense legal jargon, but correct me if I’m wrong, the power to compel banks and building societies to conduct immigration checks applies to all current accounts, yeah? In addition to this, these checks occur four times a year every year. So, first of all, where is the adequate indication that the state will resort to these measures if they affect every current account? Yeah, there isn’t any because they affect every current account. What are the circumstances for when an immigration check may occur (like for example, when there is reason to suspect (Roman Zakharov, (para 260) this current account belongs to someone who has outstayed their visa)? That’s right, the law says nothing on this. So, if this affects 70 million accounts and the Home Office is looking to catch 6000 (where did this figure even come from btw?) people, then 69994000 (assuming there are no multiple current accounts by overstayers) current accounts have just been screened for no reason at all. This is a textbook example of arbitrary interference due to the unfettered power this law provides. So, in a nutshell, this law is not foreseeable because it does not indicate when and in what circumstances a current account may be screened, it affects all current accounts, arbitrarily interferes with Article 8 rights, and grants unfettered powers. Therefore, (you guessed it) the power to compel immigration checks on current accounts is not in accordance with the law, and thus violates Article 8. Did I miss anything? Oh yes, the next human rights test.

Necessary in a Democratic Society:

Finding that s.40(A)(1) of the IA 2014 is not in accordance with the law usually means it is no longer necessary to consider whether such measures are ‘necessary in a democratic society’ (M.M., (para 207); Amann, (para 63)). I could have finished this blog post in the previous paragraph, but where is the fun in that (Kurić and others v Slovenia, (para 350))?

For a measure to be ‘necessary in a democratic society’ interfering with said rights must correspond to ‘pressing social need,’ whether it was ‘proportionate to the legitimate aim pursued,’ and ‘whether the reasons given by the national authorities to justify it are relevant and sufficient’ (S and Marper, (para 101)).

Pressing social need:

Are these blanket checks necessary? After all, ‘necessary’ is not synonymous with ‘indispensable’ but that doesn’t mean it’s as flexible as ‘desirable,’ ‘reasonable’ or ‘useful’ either (Handyside v United Kingdom, (para 48)). Therefore, relying on its utility (proven or unproven) is not enough and the state requires a greater justification (Pullen & Ors -v- Dublin City Council, (para 12(c)). The Joint Committee on Human Rights (JCHR) have pointed out that ‘[t]here must be a sufficient factual basis for believing that there was a real danger to the interest which the State claims there was a pressing social need to protect’ (Joint Committee on Human Rights, First Report (HL 42/HC 296, 23 April 2001), Annex 2).

So, are these measures necessary? Let’s consider the justifications for them from the impact assessment. The Government argue that they want to catch irregular migrants who created current accounts before it was lawful to run immigration checks when they were first set up or those who created current accounts lawfully but subsequently became irregular (so you know, all migrants are kinda suspects now). The next sentence is very suspect, the Government said they want banks and building societies to check the accounts of known irregular migrants which is a tad different from requiring them to check every current account, four times a year, just in case. The impact assessment later acknowledges the process of immigration checks is to check every current account for matches (ibid, para 20), so essentially a panoptic sort (Oscar H. Gandy Jr, The Panoptic Sort: A Political Economy Of Personal Information (Critical Studies in Communication and in the Cultural Industries) 1993 Westview Press). The impact assessment does not consider the impact on human rights, particularly Article 8 for example (SO HOW DO THEY KNOW IT IS COMPLIANT? OH WAIT…), the fact that bank details are processed for another purpose unconnected to its original purpose of processing (purpose limitation). The impact assessment does not entertain the possibility of only checking current accounts where there are reasonable and objective grounds to believe it belongs to an irregular migrant. Furthermore, the impact assessment acknowledges that after the first year, only about 900 matches will be made (ibid, para 20) even though 70 million current accounts will be checked four times a year. In essence the immigration checks are done ‘haphazardly, irregularly or without due and proper consideration’ (Roman Zakharov, (para 257)). There might be a pressing social need to remove over stayers by checking current accounts that are linked to them, but there can be no pressing social need that subjects every current account to the whims of a Government hell bent cementing its hostile environment. And on a deeper level, what has the right to live in the UK have to do with having a current account? This link is never established and so weakens the justifications for this measure further. Not establishing a pressing social need for such wide-reaching powers would too violate the ECHR (Faber v Hungary, (para 59)).

Relevant and sufficient:

This mainly concerns the effectiveness of the measure which relies upon factual, statistical, or empirical information as to the effectiveness of a certain measure (Janneke Gerards, ‘How to improve the necessity test of the European Court of Human Rights’ (2013) I•CON 11:2 466, p473). The effectiveness of the impact assessment is based purely on guesstimation as the impact assessment admits (impact assessment, para 24). The Home Office and HM Treasury would conduct an informal review 12 months after implementation to ensure effectiveness (impact assessment, para 24). Not only is there no evidence to back up any assertions i.e. pilot studies etc, the Governmental department for controlling immigration will assess its own effectiveness (that’s some independence right there), which is not even guaranteed because this is not mandated by the IA 2014, but there is no explanation of what ‘informal review’ means. Sounds a bit cloak and dagger substituting intrigue with concern. A measure is not sufficient just because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms (Sunday Times v UK, (para 65)). Not only is there no evidence to justify this measure, the screening subjects all current accounts to a rule formulated in general terms i.e. by virtue of having a current account, your immigration status will be checked. Even if the justifications were relevant, this does not mean they are sufficient, and a lack sufficient reasons too would violate the ECHR (ibid, (paras 63 and 67)).

Proportionality:

This test comes in many flavours (Thomas Hickman, ‘Proportionality: Comparative Law Lessons’ (2007) 12 Jud. Rev. 31.) but two aspects from the ECHR perspective will be considered for this blog post. The two aspects are whether the measure was the least restrictive to obtain the objective, and whether a fair balance has been struck.

The least restrictive measure (LRM) is exactly what it is, don’t use a sledgehammer to crack a nut, we have nutcrackers for that (Eva Brems and Laurens Lavrysen ‘‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights’ (2015) HRLR 15 139-168, p140). By virtue of checking all current accounts (which leads to net loss, p11) instead of checking accounts where there is reason to believe it is linked with an irregular migrant, a sledgehammer has indeed been used.

With regards to striking the fair balance, the ECtHR has never been a fan of indiscriminate powers (S and Marper, (para 125); Kennedy v UK, (para 160)) because it fails to strike a fair balance. So, checking all current accounts is an indiscriminate power, and too would violate the ECHR (S and Marper, (para 126)). The disproportionality intensifies because the interference caused by immigration checks are indefinite in that it occurs four times a year every year until, well, the Government feels like it and the fact that the number likely to be caught are miniscule in comparison to the amount of current accounts checked.

Oh, but we’re checking immigration status regardless of nationality:

This is what a Barclays spokesperson said to the Guardian regarding the new law. I am not suggesting nationality should be the basis for the exercise of power, but as I’ve pointed out above, indiscriminate powers such as these are not compatible with the ECHR. There is another reason why this is not compatible with the ECHR, and that is because of Article 14, which is the anti-discrimination right. Its only applicable when a Convention Right is engaged, in this case, Article 8, and this is where Barclays’s stance (through no fault of their own of course as they are complying with the law) becomes problematic. Indiscriminate powers triggers what is known as Thlimmenos discrimination in that:

[T]he right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (Thlimmenos v Greece, (para 44)).

And so, the position is this, ‘If there is no reason to suspect I am an irregular migrant, why are you running an immigration check on me?’ ‘Where is your objective reasonable justification for singling me out?’ ‘You want to catch 6000 people in your first year, and 900 every year there in after, if I’m not on your list why again are you running an immigration check and furthermore, once I’ve been ruled out, why are you still checking my immigration status four times a year every year?’ ‘You know why you can’t answer these questions? Because you don’t have an answer.’ ‘Do you know what this means? You’ve violated Article 8 in conjunction with Article 14’ (ibid, (para 55)).

Conclusions:

Natalie Bloomer and Samir Jeraj point out that Prime Minister May’s obsession with immigration has turned Britain into a surveillance state. Sadly, we have been a surveillance state for some time before the hostile environment even took form. We are going through a phase where hard won fundamental rights are slowly being nibbled away, each and every measure may seem mundane at the time it was enacted, but this has only emboldened the state to ever-more take the next logical step in cementing hold as a surveillance state whether it be through the hostile environment or electronic mass surveillance. Liberty dies by inches (Verena Zöller, ‘Liberty Dies by Inches: German Counter-Terrorism Measures and Human Rights’ (2004) German Law Journal 5:5 469) and becomes under severe threats from populist movements. This post didn’t really consider the data protection implications of this measure, but the Information Commissioner has linked Article 8 to unlawful processing, so there’s that. What this post has sought to do, is highlight at every legal hurdle, the powers that mandate immigration checks on current accounts, fails.

A few days ago, Pink News reported that another transgender woman had been sent to a men’s prison. December last year, Caroline Dinenage, the Parliamentary Under-Secretary of State for Justice, Minister for Women, Equalities and Family Justice announced there would be a review that will ‘develop recommendations for revised guidelines which cover the future shape of prison and probation services for transgender prisoners and offenders in the community.’ The review was supposed to be released early this year, but as of yet, no review has been released.

Pink News highlighted that it is common for incarcerated trans individuals to be sent to the prison that reflects their legal gender, requiring a successful application for a Gender Recognition Certificate (GRC) under s.1 of the Gender Recognition Act 2004 (GRA 2004). This, as Pink News state, due to the complexity of the process, trans women facing prison are less likely to have secured said certificate.

What does the European Convention on Human Rights have to say?

The European Convention on Human Rights (ECHR) is a collection of rights there to protect individuals from state action and inaction. However, Natasha Holcroft-Emmess, writing for @rights_info highlighted that the European Court of Human Rights (ECtHR) were slow to find violations of Article 8 (the right to respect private and family life) despite obvious discriminatory treatment by the UK. That was, up until the case of Christine Goodwin v UK– 28957/95 [2002] ECHR 588, a post-operative trans woman (para 12) who had been the victim of mistreatment in the work place (para 15-16). The applicant’s complaint was that she was not eligible for a State pension at the age of 60 (the age for women at the time), the failure of the UK to take heed of previous warnings of the ECtHR for legal reform on the issue of gender identity, the failure to provide protection against discrimination, the failure to obtain a promotion due to her employer discovering her status through her National Insurance number and a failure to recognise the rapid changes in social attitudes on the subject matter (paras 60-63).

The ECtHR highlighted that previous case law did not recognise such issues interfering with Article 8 (para 73) but decided to depart from this as ‘Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved’ (para 74) continuing that:

‘It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement…In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review.’ (para 74).

Crucially, the ECtHR recognised the serious interference domestic law had on the important aspect of personal identity. The ECtHR also pointed towards the stress and alienation arising from a discordance between the position in society assumed by post-operative trans individuals and the status imposed by law. The ECtHR believed this was no minor inconvenience as it places trans individuals in an anomalous position creating feelings of vulnerability, humiliation and anxiety (para 77). The ECtHR felt it ‘illogical’ that the UK allowed gender reassignment surgery but none the less did not recognise this in the legal sense (para 78).

The ECtHR reminded the UK that the very essence of the ECHR is the respect for human dignity and freedom, where the notion of personal autonomy being an important principle underlying the interpretation of its guarantees (para 90). Most importantly before finding a violation of Article 8 (para 93) the ECtHR highlighted that:

‘In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ (para 90).

Physical and moral security will be an important factor to be considered a little later, but the ECtHR’s judgment led to the GRA 2004 in which s.9 requires that once a GRC has been issued, that persons gender ‘becomes for all purposes the acquired gender.’

Transgender women in men’s prisons:

The case of AB, R (on the application of) v Secretary of State for Justice & Anor[2009] EWHC 2220 (Admin) concerned a 27 year old pre operative transgender woman who sought to challenge the Secretary of State for not transferring her to a female prison despite having a GRC (para 1). Despite living in her acquired gender for two years (as required by the GRA 2004) the Gender Identity Clinic treating her would not approve her gender reassignment surgery until she has spent a period living “in role” as a woman within a female prison (para 7). The High Court highlighted that the Secretary of State had the power to place women in a male prison but the circumstances for the present case were not met (para 10).

The questions before the High Court was whether such refusal violated Article 8 in light of s.9 of the GRA, whether Article 14 (securing Convention Rights without discrimination) in conjunction with Article 8 was violated and whether the decision by the Secretary of State was Wednesbury unreasonable (para 28). Section 9 of the GRA requires as stated that for ‘all purposes’ an individual must be treated as their acquired gender, yet Deputy Judge Elvin QC felt that that the restrictions imposed on the applicant (such as movement, clothing, and ability to participate in ordinary prison life (para 5)) wouldn’t likely apply in the rare case of a biological woman held in a male prison (para 31).

With regards to Article 8, after careful consideration of its case law in this area, with an emphasis on personal autonomy (para 38-53) it was concluded that Article 8 was engaged and therefore the Secretary of State had to justify that measures satisfied Article 8(2) (the limitations of the right to privacy etc). Deputy Judge Elvin QC had already concluded that the decision to keep the claimant in a male prison had violated Article 8 (para 57) but went on to explain why. Deputy Judge Elvin QC placed emphasis on risk and resources and that although the state has a generous margin of appreciation (discretion), when such decisions places significant restriction on a prisoners personal autonomy then the Court should scrutinise carefully the basis upon which resources are said to justify such a significant infringement of personal freedom (para 58). Deputy Judge Elvin QC highlighted that severe frustration would be caused by the continuation of male imprisonment and the consequential denial of surgery (para 60), something which Mr Spurr (Chief Operating Officer of NOMS (the National Offender Management Service) in the Ministry of Justice (para 21)) omitted to consider (para 60-61). The Secretary of State was criticised for not taking into account the consequences of the frustration of the Claimant’s progress, and its possible effects on risk and the costs of keeping her within a male prison (para 64) whilst only considering the cost of segregation on the basis that it was likely to be required only if the Claimant were transferred into a female prison and only if it were required for a significant period of time (para 73). Moreover, the Secretary of State did not consider the possibility that the period might not be particularly long, but also wholly failed to consider, let alone balance, the costs which would be likely to arise if the denial of a transfer and the loss of hope at progressing to qualify for reassignment surgery were to increase the difficulties of the Claimant living in a male prison and themselves lead to segregation (para 73). Deputy Judge Elvin QC felt this was clear not only from the circumstances of the Claimant’s offending, but from Dr Travers’ reports (who maintained that keeping the Claimant in limbo would increase frustration, indicate a shift in her risk profile, risk of self harm and harm to others and deceitful behaviour increase (para 62)) which was not disputed (para 62-71) by the other experts (para 73). There were further criticisms of the Secretary of State ranging from adopting an ‘extreme position’ on the length of segregation (para 74) and ultimately concluded that ‘Secretary of State’s decision to continue to detain the Claimant in a male in prison is in breach of Article 8’ (para 78).

Deputy Judge Elvin QC did not consider it necessary to consider Article 14 based on the finding of Article 8 (para 79) but did find the Secretary of State’s decision to continue male detention as Wednesbury unreasonable (para 85). This is a ground which requires much higher threshold to be considered unlawful than human rights grounds, which serves to highlight just how flawed the Secretary of State’s decision to continue was.

This case demonstrated that post-operative reassignment surgery (as was in Goodwin) was not necessary to secure the Convention Rights of a transgendered individual provided that a GRC had been issued.

What about not having a GRC?:

The case of M v Revenue & Customs [2010] UKFTT 356 (TC) concerned a post operative transgender woman who would have to continue paying National Insurance Contributions (NICs) until she was issued with a GRC (para 1). It was argued that Article 8 as interpreted in Goodwin required recognition of the acquired gender of a post-operative transsexual person, something which the GRA 2004 did not, but instead imposed a disproportionate two-year waiting requirement (para 18). However, Judge Nicolas Paines maintained that s.9 of the GRA 2004 made it clear that prior to the issue of a GRC, a person’s sex for legal purposes is their biological sex (para 22).

Judge Nicolas Paines did refer to A v West Yorkshire Police[2004] UKHL 21, which is an important to summarise. The case concerned the decision of the Chief Constable rejecting the application of a post-operative transgender woman (Ms A) to join his force as a constable on the grounds that she could not search suspects (para 2-6). Ms A relied on a European Court of Justice (ECJ) case prior to the Chief Constable’s decision in P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795 which as Lord Bingham noted that it was held in very clear and simple terms that the then Equal Treatment Directive prohibited unfavourable treatment on grounds of gender reassignment (para 10) and ultimately the House of Lords ruled in Ms A’s favour. However, Judge Nicolas Paines felt that this did not assist the human rights argument (para 26) and felt that he was constrained to hold that the appellant a man at all times prior to the issuing of a GRC even if it was considered contrary to the ECHR (para 28).

What this case highlights just as Pink News did, is of the complexities faced with obtaining a GRC and the consequences of not obtaining one when if one is sentenced to prison. This would likely mean that prior to having a GRC, any post and pre-operative transgendered individual would be sent to the prison of their birth gender i.e. the wrong prison.

But there is still hope:

In the case of Identoba and Others v. Georgia – 73235/12 – Chamber Judgment [2015] ECHR 474 the ECtHR held that Georgia’s failure to prevent, and effectively investigate, attacks against an anti-trans/homophobia march violated Articles 3 (freedom from torture, inhumane and degrading treatment) and 11 (freedom of assembly) of the ECHR in conjunction with Article 14.

One of the important criticisms that the ECtHR made against Georgia was that ‘domestic authorities knew or ought to have known of the risks associated with any public event concerning that vulnerable community, and were consequently under an obligation to provide heightened State protection’ (para 72). The risks and dangers associated with sending trans women to male prisons is well documented and even in the case of AB, R (on the application of) v Secretary of State for Justice & Anor the individual in question was segregated to a large extent from her male inmates, highlighting that the UK is indeed aware of this issue. The ECtHR held that:

‘[T]hat violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats, rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention.’ (para 79).

And subsequently held that Georgia had failed in its positive obligations under Article 3 in conjunction with Article 14 (para 81).

Arguably the most important aspect of this was when the ECtHR held that ‘the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity’ (para 96). Such clarification was welcomed by Transgender Europe and with Peter Dunne (Enhancing sexual orientation and gender-identity protections in Strasbourg, The Cambridge Law Journal 75(01):4-8 · March 2016) correctly highlighting that:

‘Adopting the more inclusive terminology of “gender identity”, which focuses on internal and individual experiences of gender rather than physical appearance, the Fourth Section has confirmed that all transgender persons, irrespective of whether they seek medical intervention, have equal enjoyment of Convention rights.’

Conclusions:

What does this mean for sending transgender females to male prisons (and vice versa)? Based on Identoba and Others v. Georgia an Article 8 (and possibly Article 3) argument in conjunction with Article 14 would better protect transgender individuals who neither had a GRC issued at the relevant time or did not undergo reassignment surgery. It would mean that decisions to send trans individuals to the wrong prison are open to challenge irrespective of whether a GRC is issued or are in the post-operative stage. Based on AB, R (on the application of) v Secretary of State for Justice & Anor and taking into account what was previously maintained, that being ‘in the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ It is very likely that the rights in question would be breached and thus would be in line with the Convention being practical and effective, not theoretical and illusory in the fight to protect the rights of all transgender people.

I posted a ‘shelfie’ for the ‘books for prisoners’ campaign last week – and was just looking at it and noticed that one of the books on the shelf was ‘The Best of Rumpole’. Rumpole was (and is) one of my heroes – so I took down the book, and started reading the introduction.

John Mortimer, who created and wrote the Rumpole stories, and who was himself a barrister, said some things in the introduction that reminded me why I find myself instinctively in tune with the criminal bar – though I am not a real lawyer at all. He wrote this introduction in 1992, but the words ring even more true today than they did back then. I’ll just repeat them as Mortimer wrote them:

“On the whole, lawyers are as unpopular as income tax collectors and traffic wardens. People think they tell lies and make a great deal of money. In fact, old criminal defenders like Rumpole don’t make much money and they stand up for our great legal principles – free speech, the idea that people are innocent until someone proves them guilty to the satisfaction of ten ordinary members of a jury, and the proposition that the police should not invent more of the evidence than is absolutely necessary. They protect the rights for which we have fought and struggled over the centuries, and do so at a time when jury trials and the rights of an accused person to silence are under constant attack from the government.”

That was back in 1992 – in 2014 the attacks from the government are far more intense, far more far-reaching, and sadly seem far more likely to succeed. We should be doing everything we can to defend the criminal bar from them, if we believe in any of these things. I don’t know about the rest of you, but I do.